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AN APPEAL 



IN BEHA1.F OF LOUISIANA, 



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mH of tltc mx\\d ^hk§ 



HLFILLMKNT OF THE eONSTITUTIONAL GUAKANTY TO UKI! OV A 
REPUBLICAN FORM OF GOVERNMENT, 



AS A STATE IN THE UNION. 



BY HON. RAND£LL HUNT. 



CoMMiTTKK Rooms, February, US74. 
Till! following appeal prepared at the request of the Committee of Seventy in New Orleans, 
is now presented to the Senate of the United States by the Committee as a true expression 
of the views and feelings of the people of Louisiana. 




NEW ORLEANS: 

C'lai'lc & Hofelijie, Priiaters, 9 Baiilc Place 

1874. 




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AN APPEAL 

III behalf of Lonlslaiia to the Senate of the United States for 
the fnlfillnient of the Constitutional guaranty to her of a 
republican form of government as a State in the Union. 

Senators ! Representatives of the Sovereign Stales of the Union ! Con- 
stitutional guardians of their rights and liberties ! Louisiana, wronged and 
oppressed: temporarily stripped of her sovereign rights as one of the 
United States of America, and subjected to the rule of a faction, tyrannic- 
ally set over her by judicial usurpation, supported by the military forces of 
the United States, appeals to you this day for justice and redress. 

She appeals to you in the name of a violated constitution — by the ven- 
eration and gratitude you bear the noble ancestors who established our 
system of free government — by your love of liberty, and of American 
republican constitutional institutions — by your pledged faith to defend the 
Constitution of the United States, and by the duty you owe your posterity 
to transmit to them unimpaired the blessings of liberty — to restore to her 
the republican form of government to which, in common with every State 
in the Union, she is entitled by express guaranty of the Constitution of 
the United States. Cons. U. S. Art. 4, Sec. 4. 

The last hope of republican government on the continent — founded 
upon the right of man to govern himself — to choose his own representa- 
tives and to be taxed only by them — rests upon your wisdom and patriotism. 
The eyes of every American are turned upon you. The heart of the 
nation beats with anxiety for the result of your deliberations and judgment. 

The Constitution of the United States declares that the United States 
shall guarantee to every State in this Union a republican form of government. 

The necessity for that guaranty to secure the peace, safety and liberty of 
the States, and their very existence in the Union, was so cledr that the 
clause was unanimously adopted in the convention that framed the Consti- 
tution. 

The Federalist, with characteristic vigor and eloquence, with all its 
powers of logic and appropriate historical illustration, enforces its import- 
ance and faithful maintenance. 

Judge Story, in his c(jmmentaries, adopted and published the views of 
the Federalist, with high commendation, as a part of his work, and with 



[ 2 ] 

prophetic warning says : without a guarantee the assistance to be derived from 
the national government in repelling domestic dangers, which might threaten 
the existence of the State constitutions, could not be demanded as a right. 
Usurpation might raise its standard and trample upon the liberties of 
the people, while the national government could legally do nothing more 
than behold the encroachments with indignation and regret. A successful 
faction might erect a tyranny on the ruins of order and law ; while no 
succor could be constitutionally afforded by the Union to the friends and 
supporters of the government. But this is not all. The destruction of 
the national government itself, or of neighboring states, might result from 
a successful rebellion in a single State. 3d Story's Comm., p. G79. 

The power and the duty of the Senate of the United States to maintain 
the guarantee, and to rescue any State in the Union that may stand in 
need of its aid, from the thraldom of a faction, is certain and manifest. 

Surely^ surely the Senate will not stand by unconcerned, while the people 
of a sovereign State are fraudulently deprived of their true representation 
in the Senate of the United States. 

The chief magistrate of the Union can, of himself, have no motive, no 
desire but the public good. But, surely the President, if mistaken or 
misled, will not be allowed to strike down the sovereignty of a State by his 
mere will, or the treacherous advice of partizans, and to constitute a faction 
a State. Such a power would destroy the character of our government, 
and convert it into a despotism. 

A President, while he discharges his duty constitutionally, and acts within 
the sphere of his just and true authority, is the minister of the law, enti- 
tled to the respect and support of every good citizen ; but when he tran- 
scends the law, and uses the power entrusted to him for legal purposes, to 
the oppression of a State or citizen, he becomes a tyrant and a public enemy. 
His action cannot affect the duty of Congress to maintain a guaranty which 
it is bound to maintain by the constitution of the country. 

The Constitution of the United States declares that the Senate shall be 
the judge of the election returns and qualifications of its own members 
and that the Senators from each State shall be chosen by the legislature 
thereof. 

Now, two persons present themselves to the Senate and claim to have 
been duly elected by the legislature of the State of Louisiana, to one and 
the same seat in the Senate of the United States. They present separate 
credentials from two separate and different governments, each assuming to 
be the coqstitutiop^l gijd republican government of Louisiana. 



[ 3 ] 

These conflicting claims and credentials necessarily impose upon the 
Senate the duty to inquire into the true character of the governments, 
and to decide whether either, and which, if either, of the claimants has 
been chosen a member of the Senate from the State of Louisiana, by the 
legislature thereof The Senate has shown its sense of this important 
duty. On the 17th day of January, 1873, it adopted the following reso- 
lution : 

" Resolved^ That the Committee on Privileges and Elections be instructed to 
inquire and rejiort to the Senate whether there is any existing State Govern- 
ment in Louisiana, and how and \>j whom it is constituted." 

And the credentials of the claimants to a seat in the Senate from the 
State, were also referred to that committee. The committee devoted a 
long time to the investigation of the subjects thus referred to them, took 
all the evidence — record and oral — within reach, and submitted an able 
and elaborate report. 

They showed the true character and condition of the government of 
Louisiana at this time — the pressure, grievances, and outrages, under 
which the people of the State suffer from the unconstitutional and revolu- 
tionary action of a portion of the federal authorities in setting aside its 
republican government, and creating and upholding an organized usurpation 
and tyranny — and the duty of Congress, of the national government, the 
government of the United States — in this emergency. But the Senate 
adjourned without action upon the report : and the entire subject is now 
to be finally disposed of. 

Senators ! Our system of government is peculiar and complicated. It 
is original in its character, truly and emphatically our own — x\merican, with- 
out example or parallel. We have State sovereignties, each exercising 
legislative, judicial, and executive powers, and all standing on an equal 
footing ; and we have a general government under which all these States 
are united, and it is the very beauty of our system, that the federal and 
the State governments are thus kept distinct ; the peculiar and local inter- 
ests of the several States are left to the control of the separate States, and 
the general legislation is given to the general government. The people of 
each State formed the constitution of the State. The people of the United 
States ordained and established the Constitution of the United States. 

The object of the Constitution of the United States was to make the 
people of the United States one, and to place them under one government 
in resjard to their common interests and foreign relations and foreign inter- 



[ ^ ] 

ests. It was not an amalgamation of the whole people under one govern- 
ment, and one government only — not an extinguishment of the States, 
but a union of existing States. 

The general government is a federative popular representative govern- 
ment, with all the departments, functions and organs of such a government, 
but it is still a limited and severely guarded government. It exists under 
a writtenconstitution with this preamble : 

" We the people of the United States in order to form a more perfect 
union, to establish justice, insure domestic tranquility, provide for the common 
defense, promote the general welfare, and secure the blessings of liberty to our- 
selves and our posterity, do ordain and establish this constitution for the United 
States of America." 

The constitution treats the States as States : enumerates the powers 
granted to the Ignited States and declares the powers not granted reserved 
to the States and the people. It makes one branch of the legislature of 
the United States, consist of Senators appointed by the States in their 
State capacities, and secures an equal voice in the Senate to each State in 
the Union. It makes its own existence depend upon the existence of the 
States ; and to perpetuate the latter, guarantees to each State of the Union 
— ^a republican form of government. 

These fundamental principles are stated in the words of the constitution 
and its wisest and ablest expounders. They cannot be disputed. 

Mr. Jefferson considered the preservation of the States essential to the 
existence of the national government, and of our liberties. Mr. Hamilton 
with equal emphasis, declared the existence of the States was absolutely 
necessary, and that any blow aimed at these members by the national gov- 
ernment, must give a fatal wound to the head ; and the destruction of the 
States be at once a fatal suicide. 

These governments — State and national — rest upon the consent and 
will of the people — who exercise their political power through representa- 
tives chosen by the majority — according to fixed constitutional principles. 

Thus, the House of Representatives of the United States is composed 
of members chosen every second year, directly and immediately by the 
people of the several States : and the Senate is composed of two Senators 
from each State, chosen by the legislature thereof, — but that legislature 
must consist of members elected by the immediate suffrage of the electors 
in the State. 

Stor}', in his Commentaries, says; The equal vote ol' the States iij the 



[ 5 ] 

Senate of the United States, is at once a constitutional recognition of the 
sovereignty reigning in the States, and an instrument for the preservation 
of it. The mode of choosing the Senators, gives to the State government 
an essential agency in the formation and preservation of the federal gov- 
ernment, and forms a necessary link between the two systems. 

The people of the United States have thought proper not only to limit 
and restrain their governments, but to limit and restrain themselves by con- 
stitutional regulations. In every State they have prescribed qualifications 
for office, and precluded themselves from voting for any one unless he 
possesses those qualifications. They have prescribed too, the qualifications 
of voters and shut themselves out of the right to vote, unless they have 
the qualifications. They thus tie up alike their own hands, and the hands 
of their agencies ; and neither the officers of the State, nor the whole peo- 
ple as an aggregate body, are at liberty to take action in opposition to these 
fundamental laws. 

Under the Constitution of the United States and the early articles of 
amendment to it, the right to vote was not placed under the control of the 
United States. The first article of the Constitution provides that, in the 
absence of amendments, "the qualifications of the voter are to be such as 
are prescribed for the most numerous branch of eaich State legislature." 
The States could, under that provision, change the regulation of the right 
to vote from time to time ; but it was not in the power of the United States 
to change any regulation. And so it remains, unless the later amendments 
of the Constitution confer the power of regulating the franchise on 
Congress. 

The thirteenth amendment to the Constitution of the United States, by 
a grand yet simple declaration, abolished slavery and established the per- 
sonal freedom of all the human race within the jurisdiction of the govern- 
ment; the fourteenth amendment, established that all persons of whatever 
color, white and black, born within the United States, and subject to its 
jurisdiction, are citizens of the United States, entitled to the privileges and 
immunities of citizens; and the fifteenth amendment declares that the 
right of citizens to vote shall not be denied or abridged by the United 
States, or by any State on account of race, color or previous condition of 
servitude : but none of these have given Congress any power to regulate 
the right to vote. The whole subject is still left to the several States, but 
with this restriction or limitation only, "the right to vote shall not be 
denied or abridged on account of race, color or previous condition of 
servitude." 



[ « ] 

T'nder the pressure of all the excited feelinir growing out of the war, 
our statesmen have still believed that the existence of the States, with 
powers of domestic and local self-government — including the regulation of 
civil rights — was essential to the perfect working of our complex form of 
government. 

Upon the surrender of the confederate forces the condition of Louis- 
iana offered many attractions and inducements for a settlement within her 
borders. Nearly all the plantations had been broken up. the planters 
ruined hy the emancipation of their slaves, and by the devastations, 
ravages and losses incident to war : and the freedmen, who for the most 
part had deserted their old places of abode and spread themselves through- 
out the State, had become discontented, slothful and unwilling to work. 
Lands accordingly had become very cheap, and the most fertile were within 
the compass of purchase by the intelligent husbandmen of the other 
States of the Union. Many individuals of this class, settled in Louisiana, 
and have become identified with her sons as brethren and fellow-citizens. 
Moreover, the numerous and varied interests of a community like Louisi- 
ana in a State of reorganization and reconstruction, political, commercial, 
manufacturing, proi'essional. and literary, as well as agricultural, have added 
many worthy and useful men to her population. This class of citizens 
however exercise but little influence upon the action of the political faction 
that has obtained controlling power in the State. 

Flocks of greedy and unprincipled adventurers from the Xorth, the 
East and the West lighted upon the soil of the South. They were penny- 
less, shrewd, cunning and audacious, and with sufficient education and 
knowledge to prosecute schemes and enterprises for selfish and fraudulent 
aggrandizement. They came for prey and sought it with famishing avidity. 
A large number of them landed in Louisiana. Their mean appearance 
and small traveling furniture fixed upon them the name of Carpet-baggers. 
They brought with them — almost without exception — no wives, no children 
— those sure pledges for honest industry and the good order of society. 
Their first and great effort was to ingratiate themselves with the emanci- 
pated laborers, to woo and to win them to a coalition and party organiza- 
tion, by hollow professions of philanthropy and feigned sympathy for 
their condition — past and present, — to excite the cupidity of the agricul- 
tural portion of them by false promises of land and animals and imple- 
ments of labor — to hold out to the educated colored men the glittering 
and attractive prospect of lucrative office, of power and station and social 
equality — to arouse the prejudices and inflame the passicns of race, and 



[ ■ ] 

to fill the colored people with the lust of domiuatiou. In this efibrt they 
were assisted by a number of perfidious renegades — unnatural children 
of Louisiana — and unhappily by some deluded and couscieutious persons 
whose fears for the peace of society and false views of personal interest 
betrayed them into this coalition. The party organization was effected : 
and the result of its action, aided by the machinations of official corrup- 
tion — federal and state — backed by the military power of the Union is, 
this day, manifested in the control of a dynasty of usurpers and tyrants : 
in the general demoralization of the people, the loss of confidence in 
the courts, assults upon the press, unjust and oppressive laws enforced 
with assumed boldness of imperial despotism — sending armed troops into 
our parishes, to the terror of women and children, the dishonor of their 
homes, and the utter prostration of the liberties and personal security of 
the citizens. 

There is no republican government in Louisiana. The principle that 
the people are to choose their own rulers and to be taxed only by repre- 
sentatives elected by themselves is trodden under foot. They are over- 
burdened with illegal taxation and exactions which amount to a confiscation 
of their property, and the despotism under which they live, is the more 
odious as it falsely assumes the form of republicanism. 

A general election was held in Louisiana, on the 4th day of November. 
1872, for a Grovernor, a Lieutenant Governor, member.- of the general 
assembly, and other State and federal officers. Wm. Pitt Kellogg and C. 
C. Antoine were candidates for the office of Governor and Lieutenant 
Governor, and were opposed by John McEnery. and D. B. Penn. 

The election was one of great importance. The canvass had been warm 
and excited ; and the passions and interests of factions and partizans were 
stimulated to the highest deo;ree. 

Returns of the election were made in pursuance of a statute of the 
State, to a canvassing or returning board, composed of the Governor of 
the State, the Lieutenant Governor, the Secretary of State, and John 
Lynch, and T. C. Anderson — the returns were sent under seal to the Gov- 
ernor, to be opened in the presence of the board. 

The board met and it was resolved that Pinchback, the Lieutenant Gov- 
ernor, and Anderson who were candidates for office at the election, were 
therefore disqualified to act as members of the board. George E. Bovee. 
Secretary of State, had been removed from office some months previous, 
on a charge of corruption, by the Governor, who appointed F. J. Herron 



[ 8 ] 

in his stead : and the legality of the removal and appointment was in con- 
test before the State courts. 

The Grovernor however became distrustful of Herron, removed him in his 
turn from the place of Secretary of State and appointed J. Wharton to fill 
the office and so to act as a member of the board. He had learned there 
was a plot between Herron and Lynch to falsify the election returns and 
defeat the will of the people, and that Herron had privately ordered a dupli- 
cate of the seal of State to be engraved, with the hope to preserve in his 
own hands the insignia of office in the event of his removal. 

Wharton presented his commission of Secretary of State and took his 
seat at the board with the Governor, the President of the board, and 
Lynch the only other member. The Governor and Wharton then, in the 
presence of Lynch proceeded to elect Hatch and DaPonte to fill the vacan- 
cies occasioned by the withdrawal of Pinchback and Anderson : And 
Lynch and Herron afterwards assuming to be the board, elected Longstreet 
and Hawkins to fill the same vacancies. Thus there were two bodies — each 
assuming to be the election returning board : One board was composed of 
the Governor of the State, by statute President of the returning board ; 
of Wharton the Secretary of State, and virtute officii, a member ; of 
Lynch another member : and of their appointees. The Governor had 
exclusive possession of all the election returns, documents, statements, 
etc., and of everything necessary to ascertain the result and laid them 
before this board exclusively, which proceeded to canvass and compile them. 
The other board consisted of Lynch ; of Herron, who assumed to be a 
member by virtue of the office, of Secretary of State, which he did not 
hold ; and of their appointees. The Supreme Court^of Louisiana, decided 
in May, 1872, that Herron was not the Secretary of State ; and in Decem- 
lier following that he was an intruder into the office — an arbitrary violator 
of the legal and constitutional rights of the true Secretary. It necessarily 
follows that he could not have been a member of the returning board 
virtute officii : and so the Lynch board was clearly illegal — and quite prop- 
(?rly without any returns or other matters on which to act. 

It was generally believed and soon became apparent, that Kellogg and 
Antoine had not been elected. The vote polled in the State was very 
large — exceeding by twenty thousand any before cast. The election was 
(juict, orderly, and undisturbed by any tumult. McEnery received a 
majority of nearly ten thousand votes over Kellogg for Governor, and 
Penn received a majority of fifteen thousand over Antoine for Lieuten- 
ant Governor. 



[ 9 ] 

When this result was established beyond doubt — but before the board 
completed the canvass and compilation of the election returns laid before 
it by the Grovernor of the State ; — Kellogg, who had been defeated and 
rejected by the people of Louisiana, resorted to the party scheme and 
action — secretly and fraudulently devised and prepared — to obtain, if need 
be, by guile or force, possession of the government of the State, and to 
make himself the chief magistrate and ruler over that very people: And 
this could only be effected through the countenance and aid of the federal 
power and authorities. 

The exigencies of the case, the pressure of time, the spirit of liberty, 
and the regard for the constitution in Congress, rendered helpless any 
appeal to the legislative department of the Union. The President, sworn 
to preserve, protect, and defend the constitution of the country, cut off all 
hope of immediate and direct action by the executive for the unholy 
purpose. The only resort left, was to the judiciary. True, that depart- 
ment had hitherto been the bulwark of American liberty and constitutional 
government, administering justice, crushing usurpation, upholding the 
rights of the states, and securing domestic tranquility. But Judges, like 
all other men, are imperfecta — subject to the influence of passion and sur- 
rounding circumstances. The History of England and of our country 
points out several who have wrested the law, disregarded right and liberty, 
and perverted judgment. Vanity, arrogance, bitter party spirit, the tyrannical 
aud corrupt exercise of power, the adulation of flatterers and favorites have 
sometimes poisoned the administration of justice at its very source. 

On the IGth day of November, 1872, Kellogg went into the Circuit 
Court of the United States for the District cf Louisiana, and commenced 
a suit by filing a bill in chancery against the Grovernor of the State, the 
Secretary of State, Wharton, and Hatch and DaPonte, members of the 
canvassing board; against McEnery, his late competitor at the election, and 
the publishers of the official journal of the State — all citizens of Louisiana. 
He averred, that he had been elected Grovernor of the State ; that Warmoth 
had used and abused his powers to defeat him ; that he, Kellogg, believed 
that ten thousand votes in his favor had been excluded, though offered by 
])ersons entitled to vote, because of their color and previous condition of 
servitude ; that the returning board composed of the Governor, (Warmoth,) 
of Wharton, Hatch, and DaPonte, was not a legal board, and had not pro 
perly counted the votes : and that Lynch, Hawkins, Longstreet, and Herron 
constituted the only true and lawful returning election board of Louisiana; 
that he was apprehensive that the votes received in his favor would bs 



[ 10 ] 

fraudulently dealt with, mutilated and altered by the illegal board so as 
falsely to make it appear that he had been defeated and McEnery had been 
elected ; that the evidence of his own election would be destroyed, and he 
would be deprived of the necessary evidence to maintain his title to the 
office of Grovernor, to which he had been elected, in any suit which he 
might be obliged to bring to recover the office. 

He therefore prayed for injunctions against defendants, and orders for 
the preservation of the evidence which he might perchance require to use 
in a suit which he might bring under the act of May, 1870. 

The Circuit Court of the United States is a court of limited jurisdiction. 
It has no jurisdiction of a suit of a citizen of a State against the State. 
It has no jurisdiction of a suit or controversy between citizens of the same 
State, unless the case arises directly under the constitution and laws of 
the United States, and jurisdiction is given by an act of Congress. 

The suit which the act of May, 1870, authorized to be maintained in a 
Circuit Court of the United States, is simply a suit at law between two 
parties for an office, of which he who brings the action has been illegally 
and unjustly deprived, by reason solely of the denial to any citizens of the 
right to vote on account of race, color or previous condition of servitude. 
The words of the law are, " such person may bring any appropriate suit 
or proceeding to recover possession of such office. The title then to the 
office, and to its possession and benefit, must exist, or the suit cannot be 
maintained. 

It appears from the bill of Kellogg that the result of the election had 
not been declared by either boai'd, and that there was no adverse possession 
of the office of Governor which plaintiff claimed he might thereafter be 
entitled to hold. The Governor elected in November cannot, under the law 
of the State, be inaugurated until January after. And Gov. Warmoth 
was then in office, and entitled to hold the office until January, 1873. 

We pass by the question whether this bill on its faee presented a case 
within the jurisdiction of the court, and contained the material and neces- 
sary averments for the preservation of evidence to enable Kellogg to prose- 
cute the suit at law, which he fancied that he might at some future time 
be induced to institute. 

The Constitution of the State of Louisiana provides. Art. 52 : No member 
of Congress, or any person holding office under the United States govern- 
ment, shall be eligible to the office of Governor or Lieutenant Governor." 
The article admits of no doubt. The language is clear and susceptible only 
of one interpretation. It is not that a member of Congnsss shall not hold 



[ 11 ] 

the office of Governor while he is a member of Congress ; but that he 
shall not, while a member of Congress be eligihle to the office of governor. 
Eligible, means capable of being chosen, qualified to be elected. The people 
of this State thought proper in their fundamental law to limit their own 
power of choosing a man to be Governor, and disqualified a member of Con- 
gress from being chosen for that office. They could not choose or elect a 
man not "eligible" — that is not capable of being elected. 

The danger which they intended to guard against was, the influence and 
patronage of the National or Federal government in the State election. 

Now, Kellogg was a member of Congress, a Senator of the United States 
at the time he claims he was elected Governor. If he was not "eligible" the 
votes given to him were cast away. They were ineffectual and unconstitu- 
tional. If the votes, when given, were ineffectual because not given for a 
qualified candidate, it was impossible for them to become effectual to elect 
him to office. Kellogg therefore had no ground on which to stand in 
court. 

Judge Durell was presiding in the Cii'cuit Court. He said : " The reason 
of the thing seems to favor his, Kellogg's eligibility," the object of the pro- 
vision of the Constitution being to prevent a man serving two masters and 
having a divided allegiance. But in 15th Cal. R. the Supreme Court of 
that date, consisting of Ch. J., S. J. Field, now one of the judges of the 
Supreme Court of the United States, and Justices Baldwin and Coke, 
decided : " The plain meaning of the words quoted (similar to those in our 
State Constitution ) is the opposite of this construction, and therefore the court 
needed not and would not go into curious speculations of the policy of the 
provision, of which it may have been a part, to prevent the employment of 
Federal patronage to effect the State elections. 

Upon the submission of Kellogg's bill, the court issued an exparte order 
enjoining and restraining the defendants from considering or canvassing 
any statement or return relative to the election, except in the presence of 
the Lynch board : and from permitting any other persons whatsoever to act 
as the returning officers or constituting a board ; — enjoining McEnery 
from setting up any claim to the office of Governor by virtue of any 
evidence of election furnished by the defendant Warmoth and the other 
defendants, members of the board, and restraining and enjoining the official 
journal of the State from publishing any statement relating to the election 
made by the defendants, until the further order of the court. 

This restraining order was served by the marshal on the 17th November, 
1872, two days after, namely, on the 19th of November. Kellogg filed an 
affidavit, in which he charged that the defendants had acted and were acting 



[ 12 ] 

in contempt of the order of Judge Durell. A rule wtis granted against 
them to show cause, and the matter was slowly proceeding when the Gov- 
ernor of the State officially approved an act of the legislature of November 
20th, 1872, which abolished both the Warmoth and the Lynch boards, and 
repealed all laws previously in force in regard to a canvassing election 
board of this State. 

Warmoth then, as Governor sued out, on the od December, from the 
District Court of this State an injunction restraining the Lynch board from 
acting, upon the ground that the act of November 20th had abolished that 
board. On the same day he appointed a board differently constituted and 
organized under the new law ; and this new board entered upon the dis- 
charge of its duty and made a canvass of the election returns, statements, 
votes, etc., submitted to it by the Governor, and found and declared 
McEnery elected Governor, and Penn Lieutenant Governor, and declared 
by their names the individuals who had been elected members of the Legis- 
lature, and other State officers. 

The Governor, on the 4th of December, 1872, issued his proclamation 
promulgating the result, and the returns of the board as compiled from the 
official returns of commissioners of election and supervisors of registration 
on file in the executive department of the State. 

In the meantime the order in the Kellogg case of the 16th of November 
was discussed in the Circuit Court United States and was held under advise- 
ment until the 6th day of December. The legislature of the State had been 
called by the Governor to assemble December 9th, in the capitol at New 
Orleans. The State government was in possession of its State House, 
archives and records, and it was apparent that the legislature, composed 
of members proclaimed by Gov. Warmoth to be elected, would be regularly 
and peacefully organized on that day, and that McEuery would be inaug- 
urated Governor in due course of time, unless some new obstruction 
should intervene. 

The Judge of the Circuit Court of the United States who had seen the 
proclamation of Gov. Warmoth, retired to his chamber on the 5th Decem- 
ber, brooding over in his mind the deep laid schemes and factious purposes 
of Kellogg and his party ; the Marshal of the Court, the U. S. District 
Attorney, and one of Kellogg's Attorneys were sent for and joined him. 
There at midnight — without any previous petition or motion in Court — he 
dictated and signed an order in the following terms : "It is hereby ordered, 
That the Marshal of the United States for the District of Louisiana, shall 
forthwith take possession of the building known as the Mechanics" Institute, 
and occupied as a State House for the assembling of the Legislature therein, 



[ 13 ] 

in the City of New Orleans; and hold the same subject to the further order 
of this court ; " and meanwhile to prevent all unlawful assemblage therein 
under the guise or pretext of authority claimed by virtue of pretended 
canvass and returns made by said returning officers in contempt and vio- 
lation of said restraining order. 

" But the Marshal is directed to allow the ingress and egress to and from 
the public officers in said building of persons entitled to the same."' 

E. H. DURELL. 

The committee of the Senate in their report declare : It is impossible 
to conceive of a more irregular, illegal, and every way inexcusable act on 
the part of a judge. Conceding the power of the Court to make such an 
order, the judge out of Courts had no more authority to make it than had 
the marshal. It has not even the form of judicial process. It was not 
sealed ; nor was it signed by the clerk ; and it had no more legal effect 
than an order issued by any private citizen. 

The order was delivered forthwith to the United States Marshal wlu), 
on receiving it, without a moment's delay, called to his aid and obtained a 
detachment of United States troops to act as a posse comitatus, to force it. 
Accompanied by them, and acting under this illegal order, and without 
any process of Court, Marshal Packard, in a time of profound peace and 
tranquillity marched to the Capitol, and before the dawn of day, seized 
and took possession of it. Captain Jackson of the United States Army, 
testified that he took possession of the State House on the morning of the 
6th, with instructions to take and to hold it under the direction of the 
United States Marshal — that he posted two soldiers at the entrance door, 
who guarded it with crossed bayonets, and suffered no one to enter except 
by permission of the Marshal, and that the troops occupied it for more 
than six weeks to carry out Judge Durell's Orders, and protect the mem- 
bers proclaimed elected by Gov. Warmoth from assembling and organizing 
there. 

The evidence taken by the Senate Committee on privileges and elections 
at the last session, affords strong persuasive proof that a scheme to over- 
throw the lawful government of the State with the aid of the military 
power of the Federal government was prepared in anticipation of the 
order of Judge Durell. 

On the 27th November, 1872, Kellogg wrote from New Orleans a long 
letter to the Attorney General of the United States, in which he said among 
other things : " the Supreme Court of the State is known to ai/inpafhlzc 
toi'th IIS and incidentally passed upon the legality of o///- returning board.'" 



[ 1-4 ] 

* * Should the United States Circuit Court issue its mandate in aid of 
what loe helieve to be the right, our "returning board " will show the 
republican State ticket elected, and a republican majority in the legislature. 

* * I respectfully suggest that General Emory icho sympathizes ivitli the 
repuhlican jyarty here, be instructed to comply with any requisition that 
the United States Courts may make upon him in support of its mandates. 

* * In conclusion, let me say, that should the United States hold with 
//.S-, and if I can count on the co-operation and sympathy of the federal 
government, the State may he saved to the repuhlican party Jor the future, 
etc.. 

There is no direct answer to this letter in the evidence. But on the 3d 
December, the attorney general telegraphed from the department of justice 
to S. B. Packard, United States Marshal ; you are to enforce the decrees 
and mandates of the United States Courts no matter by whom resisted, 
and General Emory will furnish you with all necessary troops for that 
purpose. On the 6th of December, Casey, Collector of the Customs at 
New Orleans, telegraphed to President Grant : 

" Marshal Packard took possession of State^House this morning, at an early 
hour, with military posse, in obedience to a mandate of the Circuit Court, to 
prevent illegal assemblage of persons in disguise of authority of Warmoth's Return- 
ing Board, in violation of injunction of Circuit Court. Decree of Court just ren- 
dered declares Warmoth's Returning Board illegal, and orders the returns of the 
election to be forthwith ])laced before the legal board. This board will proba- 
bly soon declare the result of the election of officers of State and Legislature, 
which will meet in iState House with protection of Court. The decree was 
sH-eepiny in its provisions, and if enforced will save the Republican majority 
and give Louisiana a Republican Leyislature and State government.'^ And on the same 
day the Marshal telegraphed to Attorney General Williams : 

"Returning Board, provided by election law of 1870, under which the election 
was held, and which the United States sanctions, promulgated in the official journal 
this morning, the official result of the election for the Legislature. The House 
stands 11 Republicans and 32 Democrats ; the Senate, 28 Republicans and 8 
Democrats." 

Prompt and strong as these party communications and acts had been, there 
remained something to be done to complete and ensure success. The leg- 
islature was to assemble in extra session on the 9th of December. It was 
necessary to organize it as a Republican body — a Republican Senate, and 
a Republican House of Representatives. This was to be effected by inau- 
gurating as members of it the defeated persons whom the " Lynch returning 
board," however, had announced to be elected ; and C. C. Antoine was 
used as the instrument to accomplish it. 



[ 15 ] 

Antoine, the candidate for Lieutenant Governor, and defeated by Penn. 
held the office of United States Collector of the Customs at Shreveport at 
the time of the election, and was therefore ineligible under the express 
disqualifications in the State Constitution. Following the precedent set by 
Kellogg, he filed his bill in Chancery in the United States Circuit Court 
for the District of Louisiana , and averring that he had been elected Lieu- 
tenant Governor of Louisiana in November, made substantially similar 
allegations, and prayed for injunctions and similar orders to those in the 
Kellogg case. The ex -parte order made by Judge Durell in his case was, 
however, more comprehensive. It enjoined severally and respectively the 
individuals proclaimed elected by the Governor, from claiming or exer- 
cising any right as members of the legislature, unless their names were on 
the list of members returned by the Lynch Board. It controlled and 
supervised the organization of the legislature ; it excluded the members 
certified by the board appointed under the act of November 2()th, and pro- 
claimed by the Governor elected; and it compelled the admission and 
seating of the members returned and certified by the Lynch board, and 
placed on its list. It thus set aside the constitutional and republican gov- 
ernment of the State, and appointed a legislature for Louisiana. The 
Marshal, who had seized the capitol, still held possession of it on the 9th 
of December — the army of the United States upholding him, and occupy- 
ing it. The general assembly was to convene that day ; the ingress and 
egress of persons to the State House continued to be regulated according to 
the order of the judge. The persons declared to be members by the 
returning board which the United States Court sustained, entered the 
State House and organized themselves as a legislature. 

Pinchback went into the Senate thus constituted and took the presidency. 
His office of Senator had expired on the 4th of November and his succes- 
sor had been eleeted. But he had been the president of the preceding 
Senate, and it was deemed necessary for the Kellogg faction that he should 
continue to act as such, and so claim to be Lieutenant Governor of the 
State, and incase of a vacancy, (predetermined) in the office of Governor. 
the acting Governor of Louisiana. 

The United States postmaster of New Orleans was elected speaker of the 
House of Representatives. The House immediately voted an impeachment 
of the Governor, and Pinchback assumed the office of Governor of the 
State. 

The proceedings of the Lynch board in making a list of j)ersons to be 



[ 16 ] 

recognized as members of the Legislature are described in the report of the 
Senate committee : 

On the 6th of December, 1872, the Lynch Board — Bovee,(who was then acting 
as Secretary of State in place of Herron), Lynch, Longstreet and Hawkins — pre- 
tended to have canvassed the returns of the election, and certified to the Secre- 
tary ot State that Kellogg had been elected Governor; Antoine Lieutenant Gov- 
ernor ; Clinton, Auditor ; Field, Attornej' General ; Brown, Superintendent of 
Education, aud Deslondes, Secretary of State, and also, certified a list of persons 
whom they had determined to be elected to the Legislature. 

There is nothing in all the comedy of blunders and frauds under consideration 
more indefensible than the pretended canvass of this board. 

The following are some of the objections to the validity of their proceedings : 
"1. The board had been abolished by the act of November 20th. 
''2. The board was under valid and existing injunctions restraining it from 
acting at all ; and an injunction in the Armistead case restaiuing it from mak- 
ing any canvass not bused upon otficial returns of the election. 

"3. Conceding the board was in existence, and had full authority to canvass 
the returns, it had no returns to canvass. 

"The returns from the parishes had been made under the law of ISVO, to the 
Governor, and not one was before the Lynch Board." 

"It was testified before your committee by Mr. Bovee himself, who participated 
in this canvass by the Lynch board, that they Were determined to have a Repub- 
lican Legislature, and made their canvass to that end. The testimony abun- 
dantly establishes ih^ fraudulent character of their canvass. In some cases they 
had what were supposed to be copies of the original returns ; in other cases 
they had nothing but newspaper statements ; and in other cases where they had 
nothing whatever to act upon, they made an estimate based upon their knowledge 
ot the political complexion of the parish of what the vote ought to have been 
They also counted a large number of affidavits purporting to be sworn by voters 
who had been wrongfully denied registration, or the right to vote, many of which 
aflidavits they must have knoicn to he forgeries. It was testified by one witness that 
he forged over a thousand affidavits, and delivered them to the Lynch board while 
it was in session. It is quite unnecessary to waste time in considering this part 
of the case ; for no person can examine the te-^timony ever so cursorily without seeing 
that this pretended canvass HAD no semblanck of integrity." 

On the Dth December the United States Marshal despatched these 
among other telegrams to Attorney G-eneral Williams in Washington : 

1. Returning board has promulgated in official journal, this nuirning, 
Kt'Uoggs majority, ISSOl. 

2. Grovernor Warmoth has been impeached by vote of 58 to 6. 

;->. Senate, by a vote of 17 to 5 have resolved themselves into a high 
court of impeachment. Lieut. Gov. Pinchback being now Governor. 
4. Lieut. Gov. Pinchback qualified and took possession of Governor's 



[ 1^ ] 

office to-night; Senate organized as high court of impeachment. Chief 
Justice Ludeling presiding. 

On the same day, Pinchback, and Lowell, Speaker of the House, jointly 
telegraphed to President Grant, a resolution of the legislature requesting 
him to afford the protection guaranteed each State by the Constitution of 
the United States, when threatened by domestic violence. And Pinch- 
back telegraphed separately to the President: "Having taken the oath of 
office, and being in possession of the gubernatorial office, I urge the neces- 
sity of a favorable consideration of the resolution requesting protection, 
and of necessary orders to General Emory as a necessary measure of 
precaution. 

On the 11th December, 1872, Pinchback telegraphed Attorney General 
Williams: "May I suggest that the commanding general be authorized 
to furnish troops upon my requisition for the protection of, the legislature 
and the gubernatorial office. The moral effect woiild ))e great, and in my 
judgment tend greatly to allay any trouble likely to grow out of the recent 
inflammatory proclamation of Warmoth. I beg you to believe that T will 
act in all things with discretion." And W. P. Kellogg telegraphed : "If 
the President in some way indicates recognition of Gov. Pinchback and 
legislature, it would settle everything." 

And James F. Casey sent two telegrams to the President: 1. "Parties 
are making desperate efforts to array the people against us ; old citizens are 
dragooned into opposition ; pressure is hourly growing; our membei's are 
poor, adversaries are rich, and offers are made difficult for them to with- 
stand. There is danger that thoy will break our quorum. The delay in 
placing troops at disposal of Gov. Pinchback, in accordance with joint res- 
olution, is disheartening our friends, and cheering our enemies. If requisi- 
tion of legislature is complied with, all difficulty will be dissipated, the 
party saved, and the tide turned in our favor. The real underlying senti- 
ment is with us, if it can be encouraged." 

2. "Important that you immediately recognize Pinchback's legislature 
in some manner ; either by instructing General Emory to comply with any 
requisition by Gov. Pinchback under resolution of the legislature or other- 
wise. This will quiet matters much. I earnestly urge this and ask a 
reply. 

On the 12th December, Casey telegraphs the President again: 

"The condition of affairs is this: The United States Circuit Court has decided 
which is the legal board of canvassers. Upon the basis of that decision a leg- 
islature has been organized in strict conformity with the laws of the State 



[ 18 ] 

Warmoth impeached, and thus Pinchback, as provided by the constitution , 
became Acting Governor. 

"The Chief Justice of the Supreme Court organized the Senate into a Court 
of Impeachment, and Associate Justice Talliaferro administered oath to Governor 
Pinchback. 

"The legislature, fully organized, has proceeded in regular business since 
Monday. 

"Notwithstanding this, Warmoth has organized a pretended legislature, and 
it IS proceeding with pretended legislation. A conHict between these two 
organizations may at anytime occur. A conflict may occur at any hour, and in 
my opinion there is ne safety for the legal government without the federal troops are 
given in compliance with the requisition of the legislature. 

" The Supreme Court is known to he in sympathy with the Republican State 
government. If a decided recognition of Governor Pinchback and the legal 
legislature were made, in my judgment it would settle the whole matter. Gen- 
eral Longstreet has been appointed by Pinchback as Adjutant General of State 
Militia." 

In answer to these urgent communications the Attorney Greneral of the 
United States sent this telegram : 

Department of Justice, December 12, 1872. 
Acting Governor Pinchhack, New Orleans, Louisiana : 

Let it be understood that you are recognized by the President as the lawful 
executive of Louisiana, and that the body assembled at Mechanics' Institute is 
the lawful Legislature of the State ; and it is suggested that you make procla- 
mation to that eflFect, and also that all necessary assistance will he given lo you and 
the Legislature herein recognized to protect the State from disorder and violence. 

GEO. H. WILLIAMS, Attorney General. 

The friends of the legitimate government and people of Louisiana 
appealed to the President of the United States, and asked to be heard be- 
fore the State government should be subverted and a usurping executive 
and legislature should be forced upon them. 

On the 11th of December, Governor Warmoth telegraphed to the 
President : 

Under an order from the judge of the U. S. court, investing Longstreet, 
Hawkins, and others, with the powers and duties of returning officers under 
State election law, those persons have promulgated results based upon no 
returns whatever. 

They have constructed a pretended general assembly, composeil mainly of 
candidates defeated at the election ; and those candidates protected by United 
States military forces have taken possession of the State-house, and have 
organized a pretended legislature, which, to-day, has passed pretended arti- 
cles of impeachment against the governor ; in pursuance of which, the per- 
son claiming to be a lieutenant-governor, but whose term had expired, pro- 



[ 19 ] 

claimed himself acting governor, broke into the executive office under the 
protection of United States soldiers, and took possession of the archives. 

In the meantime the general assembly has met at the city hall, and organ- 
ized for business with sixty members in the house and twenty-one in the 
senate, being more than a quorum of both bodies. I ask and believe that no 
violent action be taken, and no force used by the government, at least tintil 
the supreme court shall have passed final judgment on the case. A full 
statement of the facts will be laid before you and the Congress in a few 
days. 

Ou the 12th December McEnery telegraphed to the President claiming 
to be governor-elect of this State, I beg you, in the name of all justice, to 
suspend recognition of either of the dual governments now in operation 
here, until there can be laid before you all facts, on both sides, touching 
legitimacy of either government. The people denying the legitimacy of 
Pinchback government and its legislature, simply ask to be heard, through 
committee of many of our best citizens on eve of departure for Washing- 
ton, before you recognize the one or the other of said governments. I do 
not believe we will be condemned before we are fully heard. And the 
chairman of a committee of one hundred citizens of New Orleans appointed 
at a mass meeting of the people earnestly requested the President to delay 
executive action until the arrival and hearing of the committee who were 
about to leave New Orleans for Washington, to lay before him and the 
Congress the facts of the political difl&culties existing in this State. 

The following was the only reply to these respectful appeals : 

Department op .Justice, Decembe r 13, 1882. 

Hon. John McEnery, New Orleans : 

Your visit with a hundred citizens will be unavailing so far as the President 
is concerned. His decision is made and will not be changed, and the sooner it 
is acquiesced in, the sooner good order and peace will be restored. 

GEO. H. WILLIAMS, Attorney General. 

Next day, the 14th December, B. D. Townsend, United States Adju- 
tant General telegraphed Gen. Emory, in New Orleans : "You may use all 
necessary force to preserve the peace, and will recognize the authority of 
Gov. Pinchback." 

The proceedings of the United States court — its mandates, orders, in- 
junctions and restrictions — the communications between Kellogg, United 
States Senator, and suppliant to the federal authorities to be placed in the 
office of Governor of this State ; of Casey, United States collector of the 
Customs in New Orleans ; of Marshal Packard, and of Pinchback usurping 
the Governorship of the State — on the one side — and the executive depart- 



[ 20 ] 

ment of the United States on the other, chiefly through Attorney Gren- 
eral Williams and the orders to military officers, are detailed in the report 
of the Senate committee of the last year and its accompanying documents. 

The committee reported : The saddest chapter in this melancholy busi- 
ness was the interference of federal authorities with the afiairs of Louisiana. 
Viewed in any light in which your Committee can consider them, the 
order and injunctions made and granted by Judge Durell in this case 
(Kellogg case,) are most reprehensible, erroneous in point of law, and are 
wholly void for want of jurisdiction ; and your committee must express 
sorrow that a judge of the United States court should have proceeded in 
such flagrant disregard of his duty, and have so overstepped the limits of 
federal jurisdiction." 

It is impossible not to see that the bill of Antoine was filed, and the 
restraining order thereon was issued for the sole purpose of accomplishing 
what no federal court has the jurisdiction to do — the organization of a 
State Legislature. And your committee cannot refrain from expressing 
their astonishment that any judge of the United States should thus unwar- 
rantably have interfered with a State government, and know no language 
to express their condemnation of such proceeding." 

This report was signed by Senators Carpenter, Logan, Alcorn and 
Anthony. 

Separate reports were made by the three other members of the 
committee. 

Senntor Hill said : He assented in the main to the correctness of the 
statement of facts touching the recent election in Louisiana, and the history 
of the legal proceedings connected therewith as set forth in the report of 
the committee, and commended the just though severe criticism of a judi- 
cial tribunal for its improper intervention. 

Senator Trumbull, many years chairman of the judiciary committee of the 
Senate, said: " In no conceivable case could a United States court or judge 
have jurisdiction to issue orders, such as were promulgated by Judge 
Durell. As well might a United States District Judge make an order to 
seize the Federal Capitol and prevent all members from entering the build- 
ing, except such as he should declare duly elect ed^ 

And Senator Morton said : ''The conduct of Judge Durell, sitting in the 
Circuit Court of the United. States, cannot be justified or defended. He 
grossly exceeded his jurisdiction and assumed the exercise of powers to 
which he could lay no claim. ***** 

" The pretence that in a suit to perpetuate testimony the Court could go 
beyond the natural and reasonable jurisdiction to decide who constituted 



[ -'1 ] 

the legal Returning Board under the laws of Louisiana, and to enforce the 
rights of such as it might determine to be members of that board and t<i 
enjoin others who were not, is without any foundation in law or logic. 

" In the Antoine case Judge Durell not only assumed to determine who 
constituted the legal Returning Board, but to prescribe who should be 
permitted to take part in the organization of the Legislature, and to enjoin 
all persons from taking part in such organization who were not returned 
by the Lynch Board as elected : and thi'a assumjition was made in the face 
of the express provision in the act of 1870, that its benefits should not 
extend to candidates for Electors, for Congress or the State Legislature. 

" His order issued in the Kellogg case to the United States Marshal, to 
take possession of the State House, for the purpose of preventing unlaw- 
ful assemblages, under which the Marshal called to his aid a portion of the 
army of the United States, as a posse comitatns, can only be characterized 
as a gross usurpation." 

Such is the unanimous opinion of the committe of the Senate upon 
the proceedings in the Circuit Court of the United States. 

The memorial and addresses from citizens of this State to the President 
of the United States, and to the Congress and the special communication 
addressed at the instance of the President to the Attorney G-eneral of the 
United States, heretofore published and communicated to this body, con- 
tained a full recital of the grievances of Louisiana. They are written 
with care and truth, and with simplicity and force of language. The 
views they present of the rights of the State and of the powers of the 
Constitution of the United States, and the fiicts involved in these pro- 
ceedings, are sound and unanswerable. 

The judge who presided over the Circuit Court said : •• the bill of Kel. 
logg is a bill to preserve evidence to enable him to prosecute a suit at law. 
* * The court does not pretend in any way to make a governor of the 
State or in any degree to interfere with the voice of the peo)ile expressed 
through the ballot box. 

But no such suit has been prosecuted. The bill was used for the pur- 
pose of usurping jurisdiction and control of the entire State election of 
4th of November, LS72, for executive, judicial, and legislative officers of 
Louisiana, by decreeing who should constitute an election board for the 
State, who should be permitted to take part in the organization of the 
legislature, by ordering no persons to be admitted members unless approved 
and certified on a list to be prepared by the election board of his sanction 
and approval ; — in a word with the addition of the Kellogg bill and the 
proceedings had under it, and the aid of the authority and power and 



[ ^^'2 ] 

military force of the United Stiites to establish in the way you have seen, 
in the form of a republican government an odious usurpation and despo- 
tism. 

Senators ! You have now before you a plain statement of the manner 
in which the government of Louisiana has been ursuped : — how the body 
organized as the legislature of this State was inaugurated and maintained 
in power ; — how W. P. Kellogg and C. C. Antoine were installed and are 
upheld as Governor and Lieutenant Governor ; — how judges and sheriffs 
and other officers of the State have been appointed and kept in office ; — 
how all this has been done in violation of the constitution and the laws of 
of the State, in disregard of her republican form of government and the 
right of her people to elect their own officers and govern themselves : and 
how it has destroyed her material interests while it has overthrown her 
liberty and right of self goverment. Your attention has been brought 
once more to a portion of the testimony to which you were referred in 
previous appeals by the people of this State ; to the extraordinary corres- 
pondence and communications between the federal officers in New Orleans 
and the executive department of the United States in Washington, 
to the illegal orders of the United States Circuit Court and the employ- 
ment of a portion of the army of the United States, to aid in the execu- 
tion of its illegal judicial process, and to enforce mandates beyond the 
jurisdiction and power of any court of the United States. 

This government has been imposed and maintained, by federal power 
alone, upon the people of Louisiana, against their will expressed through 
the ballot box. And that people now appeal to you, Senators, and to the 
Congress, of which you form a part, for relief and redress ; for a removal 
of the odious tyranny to which their state is subjected by an abuse of the 
force and authority of the government of the United States, and for her 
restoration to republican government with her State rights undiminished 
and unimpaired. 

It is as strong and clear a case as ever can arise in which Congi*ess may 
"guarantee a republican form of government." 

The question to be decided by the Senate is not one of a personal party 
character. It concerns not simply the right of an individual to a seat in 
the Senate. It rises above all party consideration and involves the very 
existence of our republican system of government. The Senate cannot 
admit to a seat in their body one pretending to be the senator of a State 
that has not a republican form of government. The constitution of 
the United States provides that the Senate shall be composed of two sena- 



[ 23 ] 

tors from each State, chosen by the legislature thereof, and shall be the 
sole judge of the election, qualification and return of its members. The 
question then whether Louisiana, or any other State of the Union, has a 
republican form of government, is a fundamental question, vitally affecting 
the character of the Senate as the body representing the States of the 
Union, and you senators must necessarily determine upon the conflicting 
claims of Pinchback and McMillan, whether the body which chose Pinch- 
back or that which chose McMillan senator for the State of Louisiana was 
the rightful legislature of the State ? or whether there is any rightfu 1 
State government at all existing in Louisiana ? 

" The United States shall guarantee to each State in this TTnion a repub- 
lican form of government" is a constitutional provision. 

The expression "a republican form of government " was used in contra- 
distinction to a monarchical or aristocratic form of governmenl. It was 
used in the American sense of form of government at the time. The men 
who framed the constitution of the United States of America were wise and 
practical statesmiiu ; thoroughly understanding the principles of free gov- 
ernment, and acquainted with all the systems of governnunt known to 
history or then prevalent in the world. It is puerile — it is a mockery 
of common sense to imagine that they looked to mere form irrespective 
of substance — to empty show and not to real government, and that they 
intended to give a constitutional sanction to the overthr(jw of a State gov- 
ernment in the Union, by a bold and successful usurper — the despotic 
leader of a faction. What has happened in Louisiana may happen else- 
where, in New York or Massachusetts. A usurper, favored by circum- 
stances — by the excitement of prejudice, of national or state politics — by 
evil influence of whatever character — might rise up, like Kellogg, and 
usurp the power of the State with impunity, if sustained by the military 
power of the United States. A correct interpretation of the terms of the 
guarantee, is necessary to carry out the objects of the clause — the tran- 
quility of the States, their protection against invasion and tyranny, and 
the maintenance of their existence, as sovereign republican States, under 
our system of government. 

The committee of the senate in their report declared, in looking to 
this part of the constitution, that the best definition of a republican gov- 
ernment ever given is that by President Lincoln : " A government of the 
people, by the people, for the people." 

The argument, that it would be dang(?rous to the State rights of 
Louisiana, to restore to her the state rights of which she has been de- 



[ 24 ] 

piived by usurpation and tyranny ; and that Congress would deprive her 
of a republican form of government by setting aside the illegitimate and 
anti-republican government forced upon her, and restoring the republican 
government of which she is deprived, will hardly meet the assent of the 
senate. 

It has been argued that the Kellogg government has been voluntarily 
submited to. and so recognized and approved by the people of Louisiana. 
But the truth is, that the people have opposed and still oppose it, by every 
means in their power short oX nhsolute force. Undoubtedly, they know 
that the orders of the circuit court, beyond the jurisdiction of the judge 
and without any warrant in the constitution and laws, were invalid and 
without authority. They saw however that opposition on their part to 
the execution of these orders would be put down by an armed force of the 
United States, detailed for the express purpose of compelling submission, 
by the irresistible power of the general government, to a preappointed 
government. They saw the state house of Louisiana illegally seized by 
the United States Marshal, and held and controlled by federal troops 
aiding him for the use of the illegal government. They knew that federal 
orders were given to put down opposition if need be by arms and the 

destruction of life. 

If their blood boiled when they saw their own chosen members of the 
legislature and other officers shut out from the capitol, its entrance guarded 
against them by soldiers of their common government, but open for usurpers ; 
they nevertheless restrained their feelings and showed by a moderate and 
sedate deportment, by firm unwavering opposition, by appeals to Congress, 
to the State governments, to the people of the entire Union, that they 
were not and would not be the willing subjects of despotic power. 

They had passed through a bitter experience, a period of excitment and 
party madness and were unwilling to furnish any argument to their 
enemies against the capacity of man for self government, to their oppres- 
sors for further violence and despotism. They believed in the honesty and 
public virtue of the people of the United States. They resolved to indulge 
in no malignant hatred and denunciation of entire classes ; and trusting to 
the relations of consanguinity and love, to the ties of interest, the recollec- 
tions of j)ast kindness and the common glory of our great republic, they 
believed that their great wrongs would be redressed and American liberty 
vindicated by the final judgment and action of the country. 

With these feelings, and in this spirit we renew our ap})eal. We say to 
you Senators, in the language of your committee, that the ai'my of the 



[ 25 ] 

United States has been interposed by Judge Durell in the State election of 
Louisiana— a matter wholly beyond his jurisdiction — between the people 
of Louisiana and the only government, the McEnery government, which has 
the semblance of regularity ; and the result has been to establish the 
Kellogg government, so far as that State now has any government. For 
the United States to interfere in a State election, and, by the employment 
of troops, set up a government and legislature without a shadow of right, 
and then refuse to redress the wrong, upon the ground that to grant relief 
would be interfering with the rights of the States, is a proposition difficult 
to utter with a grave countenance. 

The election of McEnery is supported by-election returns made in con- 
formity with law. But, if the Senate should be of opinion that no State 
government rightfully exists at present in Louisiana, tlien it will be the 
duty of Congress to interpose, and reinstate Louisiana in a republican form 
of government. This can only be done by the passage of an act for that 
purpose, providing an election by the people. 

It has been said, that Congress ought not to order a general election in 
Louisiana for Grovernor, and other officers of State, including members of 
the legislature, at this time — and for the restoration of a Republican form 
of Grovernment : — That by the State Constitution there will be an election 
in November next for members of the legislature ; and the people will only 
have to wait eight months for the election — which will give them a legis- 
lature of their own choice, re-establish their liberties and put an end to 
all their difficulties. 

These are the false and deceitful suggestions of the friends of the usurpa- 
tion. 

They — who, by fraud and force, abolished the republican form of gov- 
ernment in the State, and trampled the Constitution in the dust — believing 
themselves strong in power, invoke a portion of that Constitution to con- 
tinue their domination, and shamelessly address the invocation to the 
Senate. 

Senators! — When you participated, during the war, in the emancipation 
of the slaves of the South, and struck off the fetters of the black man, it was 
not to fasten them on the white man. The work was an immortal and 
grand work for universal liberty — for the natural and equal rights of man. 

You will not now say to the Louisianian : "Success sanctifies tyranny. 
You have been a slave more than a year. Duty calls us upon us to restore 
you to liberty; but we are unwilling to hurl the tyrant from the Tarpeian 
rock: we will allow you, at a future time, to vote for members of the 
lesislature." 



[ ^^\ ] 

This would be a riiockery. The legishUure of the State does uot consti- 
tute the entire State government : . The proposed election is to retain in 
power, in the executive and judiciary departments, those who have no right 
to office,and to retain in the legislative departments Senators not elected, and 
odious to the people : Officers whdse term is for four years are not to be 
disturbed — Kellogg and Antoine — are to remain Governor and Lieutenant 
Governor; judges, clerks of couit and others, illegally holding office, ai*e 
to be continued in their respective offices.^ And a Kellogg-election-board 
is to be kept alive as a corps de reserve to supply estimates where there 
may be no returns, and to make up any deficiency in votes by calculations 
of political arithmetic. 

The decisions of the Supreme Court of Louisiana have been referred to 
as upholding the legitimacy and authority of the Kellogg government. 
They have been carefully reviewed in the document laid before the Senate, 
and are entitled to no weight in the true consideration of the question now 
before the Senate. It has been shown that Congress is necessarily, from 
the express terms of the guaranty clause in the Constitution of the United 
States, the sole and exclusive judge — whether the State demanding redress 
at their hands, has or has not a republican form of government. 

It has been shown that the question under your consideration, is the 
most important that has arisen under the Constitution of the LTnited 
States ; that it involves the continuance of American republican govern- 
ment, and the existence of the Union, and that it is of the deepest con- 
cern to the cause of free popular government throughout the civilized 
world. 

The successful and lasting triumph of an usurper and his faction over the 
the rights of a sovereign State, would be truly the death of the Republic — 
the funeral of American liberty. 

But the people of Louisiana indulge no fears of the result of your 
deliberations. In common with the people of every State in the Union — 
all equally interested, they have the utmost confidence in your wisdom, 
independence and patriotic judgment. They believe in the good fortune 
of the Republic — in the destiny of man under divine providence to appre- 
ciate the value of liberty, the more strongly as he advances in knowledge ; 
and they reverently trust that He under whose guidance and protection 
the American people have pa.ssed through the storms of revolution and 
civil commotions, will inspire your counsels and confirm and maintain the 
constitutional guarantee of a Republican form of government to the State 
of Louisiana. 

RANDELL HUNT. 



LIBRftRY OF CONGRESS 



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